Opinion
No. 3:01-CV-1763-R.
April 19, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"). Respondent Douglas Dretke is Director of the TDCJ-ID. III. PROCEDURAL BACKGROUND
On May 30, 1997, Petitioner pled guilty to manslaughter and felony driving while intoxicated in the 372nd District Court, Tarrant County, Texas. Petitioner was sentenced to ten years imprisonment for each charge, to run concurrently.
In this petition, Petitioner challenges the Texas Board of Pardons and Paroles' ("The Board") decision to deny his release to mandatory supervision. On July 23, 2001, Petitioner filed a state application for writ of habeas corpus challenging the Board's decision. Ex parte Ballard, Application No. 50,025-01. On August 22, 2001, the Texas Court of Criminal Appeals denied the application without written order. Id. at cover.
In this federal petition, Petitioner argues:
(1) He was denied due process when the Board denied his release to mandatory supervision;
(2) His Fifth Amendment rights are being violated because he is being held past his minimum sentence date; and
(3) He is being forced to perform labor without compensation in violation of his equal protection rights.IV. DISCUSSION
1. Standard of review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254 provide:
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.See 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id.
This amendment applies to all federal habeas corpus petitions which are adjudicated on the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049 (1997). The petition in this case is subject to review under the AEDPA.
Additionally, under 28 U.S.C. § 2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation omitted).
2. Due Process
A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). The state law governing mandatory supervision at the time Petitioner was sentenced, however, provides in relevant part:
Except as provided by Section 508.149, a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the calendar time the inmate has served plus any accrued good conduct time equal the maximum term to which the inmate was sentenced.
Tex. Gov't Code Ann. § 508.147(a) (Vernon 1997).
Section 508.149 delineates the circumstances under which the parole board may deny release to an inmate otherwise eligible for mandatory supervision:
An inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate's accrued good time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmates's release would endanger the public.
Id. at § 508.149(b).
Petitioner argues he was denied due process when the Board denied his release to discretionary mandatory supervision. Due process concerns arise only in the presence of a protected liberty interest. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). Although the Fifth Circuit has found that an earlier version of the Texas mandatory supervision release statute created an expectancy of early release, the effect of the current statute is unclear. Id. The Texas Court of Criminal Appeals has concluded that the language of Sections 508.147(a) and 508.149(b) still creates a legitimate, although limited, expectation of release. Ex parte Geiken, 28 S.W.3d 553 (Tex.Crim.App. 2000). Therefore, in an abundance of caution, the Court will consider Petitioner's due process claims.
On July 10, 2000, Petitioner was notified that the Board intended to review his file to determine whether he should be released to discretionary mandatory supervision. (Resp. Ex. C, p. 6). Petitioner was given the opportunity to submit any information. Id. On December 1, 2000, Petitioner was notified that he was denied release to mandatory supervision. The notice of decision states:
You have been denied Mandatory Supervision Release for the reason(s) listed below:
13. Accrued good time is not an accurate reflection of offender's potential for rehabilitation;
14. Offender's release would endanger the public;
01. Criminal record and/or nature of offenses;
03. Drug and/or alcohol involvement.
( Id. at p. 7). Petitioner was notified that his next review date would be November, 2001. On February 6, 2001, Petitioner was notified that the Board would again consider Petitioner for mandatory supervision. ( Id. at p. 8). Petitioner was granted the opportunity to submit information. ( Id.). On September 12, 2001, Petitioner was notified that he was denied release to mandatory supervision. The notice states:
You have been denied Mandatory Supervision Release for the reason(s) listed below:
9D1. The record indicates that the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation;
9D2. The record indicates that the inmate's release would endanger the public.Id. at p. 9. Petitioner was notified that his next review date would be November, 2002.
It is clear that Petitioner was told why his release had been denied and was notified of his next review date. Petitioner was also given the opportunity to submit evidence. Due process requires no more. See LaChance v. Erickson, 522 U.S. 262, 266 (1998) (finding due process requires notice and meaningful opportunity to be heard); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 15 (1979); (providing opportunity to be heard and reasons for denial of release are sufficient to satisfy due process). Petitioner's claims are therefore without merit and should be denied.
Petitioner also argues the Board has denied him due process in revoking his good time credits. The record shows, however, that Petitioner's good time credits have not been revoked. (Resp. Ex. D). Good time credits and work credits are considered in determining an inmate's eligibility for mandatory supervision. Ex parte Schroeter, 958 S.W.2d 811, 813 (Tex.Crim.App. 1997). Even if an inmate's calendar time combined with all earned good-conduct and work-time credits result in him being eligible for mandatory supervision, the Parole Board must still consider whether the inmate's accrued good-conduct time is an accurate reflection of his potential for rehabilitation and whether the inmate's release would endanger the public. Tex. Gov't Code Ann. §§ 508.147 508.149. Thus, Petitioner's claims are without merit and should be denied.
3. Double Jeopardy
Petitioner argues his incarceration past the minimum sentence term violates his double jeopardy rights. The Double Jeopardy Clause states that no person shall "be subject for the same offense twice to be put in jeopardy of life or limb." U.S. CONST. AMEND. V. This clause protects against: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. United States v. Ursery, 518 U.S. 267, 273 (1996); United States v. Gonzales, 76 F.3d 1339, 1342 (5th Cir. 1996). Petitioner argues he is being subjected to multiple punishments for the same offense because he is being held past his minimum release date.
A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Orellana, 65 F.3d at 31. Petitioner was sentenced to two concurrent ten year sentences. He has yet to complete these sentences. Petitioner's double jeopardy claim is without merit and should be denied.
4. Forced labor
Petitioner argues he is being required to perform labor while incarcerated in violation of the Equal Protection Clause. A writ of habeas corpus is the appropriate federal remedy for a state prisoner challenging the fact of confinement. Cook v. Texas Dept. of Criminal Justice Transitional Planning Dept., 37 F.3d 166, 168 (5th Cir. 1994). Claims involving the conditions of confinement and prison procedures, however, are properly brought under 42 U.S.C. § 1983. Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). Petitioner's allegations involve the conditions of his confinement and therefore do not entitled Petitioner to relief in this habeas corpus petition. Further, the Fifth Circuit has stated that requiring prisoners to work without pay does not violate a prisoner's constitutional rights. See Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988). Petitioner's claims are without merit and should be denied.
V. CONCLUSION
The state court's decision to deny relief appears consistent with clearly established federal law of the United States Supreme Court. The state court's decision also appears to be based on a reasonable determination of the facts. The petition should therefore be denied.
RECOMMENDATION
For the foregoing reasons, the petition should be denied with prejudice for failure to make a substantial showing of the denial of a federal right.